Earlier this year, I presented at a Wisconsin Defense Counsel Conference, along with three jurors from two of my most recent jury trials.

I was pleasantly surprised that these three jurors (two of whom are retired, giving them a little more free time) voluntarily spent time answering questions on a panel and taking the many questions from our audience. Many attorneys talk to jurors immediately after verdicts or follow up in the days after verdicts to learn what the jurors found persuasive, what they found troublesome, etc. Unfortunately, but understandably, jurors are not always readily accessible or willing to spend even more time with attorneys after their service concludes.

Although I am on the "back nine" of days as a trial attorney, I continue to learn ways I can be a more effective trial attorney – and you can, too.

In this article, I share what I found to be the most significant take-aways from my discussions with these jurors and the interactive Q&A which emerged during the panel.

The Attorneys

It's Not What You Wear – It's How You Present Yourself

When I was in law school, my mom served as a juror on a criminal trial and all she would tell me afterward was to make sure I did not look sloppy or wear rumpled clothing in court. One of the attorneys in her trial had done so, and she couldn't stop focusing on it.

I came up in the days of "blue or black suit; bland, neutral blouse, no flashy jewelry; you want the jury to listen to your words, not be distracted by how you look." In February for the first time in my career (gasp!), I actually wore a cream-colored jacket with a patterned skirt. The jurors couldn't have cared less. None of them could tell me what I was wearing on any given day.

What did matter? Whether the attorney appears prepared and organized or whether they appear distracted at counsel table, shuffling papers, fiddling with glasses, and whether the attorney seems respectful of the judge and jury and witnesses on the stand, jurors notice.

I was struck in these conversations by how perceptive the jurors were regarding each attorney's behavior and how much that colored their impressions of that attorney and their client and case. They didn't care if attorneys used notes during questioning or opening and closing, but they did care that we appeared respectful and organized and didn't delay the proceedings.

Creativity Can Be Beneficial, But It Can Also Go Over the Top

Although there is a way to tell your client's story creatively, if it goes over the top, the jury can tune out and it can backfire.

They do not want to see attorney antics or "a production." Civility was very important to them, including respecting the judge's wishes. For example, in one of my trials the judge asked counsel not to have side conversations at counsel table and the attorneys did not follow suit – this was most definitely observed by and looked down upon by our jurors.

The Trial

Don't Forget to Give Them the Basics

Probably the most important piece of information I picked up from my discussions with these jurors, and something I'm a little embarrassed that I didn't always focus on previously, is that although we attorneys may know our cases forward and backward, they are brand-new to it.

As a defendant, I question witnesses and present my case second. I want to make sure I don't unnecessarily rehash what was already covered by plaintiff’s counsel.

However, we must be cognizant that the jurors are going to have questions about the basic details of the case, and if we gloss over them or simply skip them to get to what we think are the best points for our client, we risk losing them.

One of my trials involved a motor vehicle/pedestrian fatality on a dark country road. One of the first things the jurors told me post-verdict was that nobody ever put up a diagram of the area showing them where the vehicle was, where the pedestrian was, where both came to rest. These things were talked about by witnesses and during the defense expert's testimony some pieces of this puzzle were given visually, but they never got an initial overview of the scene, and their minds were grasping to understand it throughout a lot of the testimony.

This results in distracted jurors, which isn't good for any party.

In the future, I will consider using some sort of visual overview during opening statements or with an early witness in case plaintiff’s counsel does not.

In my slip-and-fall snow-and-ice trial, the weather and temperature were not factors and therefore none of the attorneys or witnesses discussed it at all. The jurors were waiting to hear about it and never did – they were distracted waiting for a piece of information we could have easily given them.

The Importance of Expert Witnesses

Expert witnesses can make or break your case. However, a big part of this is determining how your expert will present to the jury. Will they have amazing facts and figures to present, but do so in such a bland and monotonous manner that the jurors tune out? Will they want to sound so smart they speak in terms that are above all the jurors' heads? If so, that highly paid star witness may flop. A qualified but also a palatable and relatable expert is vital.

In the motor vehicle/pedestrian case, the defense had an accident reconstructionist with excellent credentials (and who came highly recommended) and a human factors/conspicuity expert. In meeting with these experts ahead of time and in preparation, the accident reconstructionist provided an excellent report and broke things down in a wonderfully detailed manner. I initially thought he would be our best witness and was thinking we would save him for last. The human factor/conspicuity expert was a little older and a little more colloquial, but definitely knew what he was talking about and offered a very solid and scientific report.

As we were preparing for trial testimony my co-defense counsel and I realized that the second expert was going to be our "star," as he had a very natural and comfortable way of explaining things without being aloof or "heady." Had we not prepared well enough with him in advance we may have made a strategic mistake in determining the order in which they testified.

I had always assumed that jurors largely gloss over all experts, but was pleased to hear from jurors in both of my recent trials that they specifically appreciated the experts whose testimony was clear and understandable, even if the testimony wasn't brief. One of the jurors went out of his way to compliment my vocational expert whose opinions, due to the nature of the case, were somewhat complex; she offered multiple alternate wage loss opinions. She presented her opinions and bases thoughtfully and she kept the jurors’ interest the entire time.

They Want Honesty, Not Avoidance

In my snow-and-ice premises liability trial, my client representative was, fortunately for me and for the company, as good as it gets. My client was a small local family business, and she presented intelligently but also honestly and kindly.

Throughout the trial, as you would expect, plaintiffs' counsel cross-examined her about policies, procedures and perceived "misses" by her and the company. Apparently after rendering their verdict (in favor of the defense), the jurors commented to the trial judge how much they appreciated that when my client testified and gave an answer which was not beneficial for the defense, she answered it honestly, directly, and without avoidance. This was mentioned again during my panel discussion.

It is human nature to try to defend or counter or explain negative implications. However, our jury thought even more of her for simply accepting what could be a negative fact and not avoiding having to give a few difficult answers.

Don't Waste Their Time

It is always a difficult balance to determine how many times and through how many witnesses we should highlight facts or opinions beneficial to our case. Do it only once and the jury may forget it by the time deliberations come around. Do it too many times and they are metaphorically rolling their eyes.

After my premises trial I ran into one of the jurors in Costco. We had a short exchange about the trial, but he immediately volunteered, "We really appreciated that you got to the point and didn't waste our time."

In the Jury Room

They Read the Instructions

I was pleased to learn that the jurors from my two cases actually went through and read the jury instructions and tried to find some of their answers through them. We spend much time presenting, revising and arguing over jury instructions. I can't imagine jurors pay 100 percent attention during the reading of the instructions prior to closing arguments. It was refreshing to learn, though, that they did look at the instructions to assist them in their deliberations.

They May Do Their Own Investigation

I also learned from one of my jurors, despite the prohibition in the jury instructions, that they simply may do their own investigation. One juror admitted during the panel that she went out at night on the dark roadway and pulled off to the side of the road with her headlights on to see if oncoming traffic would slow due to her presence there.

I'm not really sure what we can learn from this takeaway other than being aware that although people try to do their best to follow the rules, it may not always happen.

They Anchor Against Strong Opposing Jurors

In the motor vehicle/pedestrian fatality case, we had what you would think would be two classically good "defense jurors." The two jurors who appeared on my panel shared that these two gentlemen dug in early on as to their positions that 1) only the pedestrian was at fault and 2) minimal to no damages should be awarded.

While this sounds like a defense attorney's dream, their positions and entrenchment actually caused some of the other jurors to "counter-anchor" and be in favor of more liability to the vehicle driver and more damages to be awarded.

It is not a shock that jury verdicts often come because of compromise. I have a suspicion that had those two “dug in” jurors been less defiantly adamant, the percentages allocated to the driver and to the pedestrian would not have been as close as they were (they assigned 40 percent to the driver and 60 percent to the pedestrian). It is possible the damages award may have been lower as well.

I can't point to a specific takeaway of something I may do differently, because during voir dire, although I suspected the two “dug in” jurors would be more favorable to the defense, I didn't see that conflict and counter-anchoring coming.

They Figure It Out

The motor vehicle/pedestrian jury deliberated for a couple of hours the first afternoon and came back the next morning. They finished by noon. We came to learn later that tensions were very high on that first afternoon due to the two men digging in very defiantly. Voices were raised and tensions were high. When the judge offered to let them stay longer to deliberate, they all figured they probably needed a break from each other and opted to head home and return the next day.

The next morning one of the jurors took a banana off the table and declared that only the person holding the "talking banana" was allowed to speak, thus ensuring whoever was speaking would be heard uninterrupted. Things went much more smoothly that second day.

Takeaway: always make sure there are bananas in the deliberation room.

The Verdict

Know Your Audience, Rely on the Evidence

Courses are offered, seminars presented, and books written about trying to maximize or minimize monetary awards for intangible items such as pain and suffering, and it is certainly an inexact "science."

As you might expect, none of the jurors could give a very clear picture of how dollar amounts were determined, other than our "talking banana" group who started anchoring and counter-anchoring until they found numbers that everybody "could live with."

This case was tried in Lincoln County, a relatively rural county north of Wausau. Plaintiffs' counsel had asked for seven figures for a couple of items of damages in this wrongful death case. Those jurors later told me: "Where does he think he is? Milwaukee?"

Knowing your venue and the likely attitudes of your jurors in the area can be helpful in determining appropriate numbers to suggest.

Obviously, the facts matter. In the wrongful death case, the plaintiffs were adult children in their 50s and 60s. Details about their independent lives and their interaction with their deceased father were important to the jury as they considered the Loss of Society and Companionship damages. To nobody's surprise, the jurors noted that if young children had lost their father, it would have been a very different discussion.

In the premises liability case, a juror commented that having an understanding of what the injured plaintiff's day to day life and activities were (which included many abilities) was important to him. To suggest a number to the jury, make sure you elicit evidence to support it.

The Outcome

If juries were made aware of how their answers to the verdict questions intersect with the law and affect the result of their verdict, they might ignore their duty (to follow the evidence and law and to answer only the questions posed to them) and they may be inclined to allow sympathy to change their verdict answers.

For example, we ask jurors in many two-car motor vehicle accident cases to determine the percentages of fault between two drivers, but we don’t tell them that if plaintiff is more than 50% at fault, she recovers nothing.

In the motor vehicle/pedestrian case, the jury determined the pedestrian was 60 percent at fault and the driver was 40 percent at fault, thus negating any recovery. When I told the two jurors on my panel that their apportionment meant no recovery by the plaintiffs, they seemed disappointed. I asked why, and they said, "We wanted to get the family something." I appreciate that these were kind people who just wanted to “help” other people; kind humanitarians are a wonderful thing in society in general. However, had they known the ramifications and changed their verdict answers, they would have been responding to sympathy, whereas the law given them through the jury instructions make clear that verdicts should not be so based.

I then let them know that the family had already received $50,000 from an underlying settlement and had turned down an additional settlement offer (so they already got “something” and could have had “something” more) – another thing jurors are not and should not be allowed to consider when rendering their verdict. I pointed out a few other facts which they didn't hear at trial, and they felt much more at peace with and understanding about the result.

Conclusion

You can try the same case 10 times with 10 different juries, and you will get 10 different results. You will also get 10 different sets of opinions on what was effective and what was not. In addition to the “big picture” there are many “little picture” things we can focus on that will help us put our best case forward when representing our clients at trial.

And don’t forget the bananas.

This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section webpages to learn more about the benefits of section membership.